Last week, the Justice Minister proposed a bill aimed at separating the duties of the Attorney General from those of the Public Prosecutor. Even though this may be a correct step to take, Prof. Mordechai Kremnitzer warns to act cautiously.
Last week, the Justice Minister proposed a bill aimed at separating the duties of the Attorney General from those of the Public Prosecutor – a new position. This idea is not new, and a similar bill has already been proposed in the past (see the study conducted by Dr. Gad Barzilai and Prof. David Nachmias). According to the Minister, the Attorney General is faced with a constant conflict of interests, because on the one hand he is charged with advising the government and ministers in fulfilling their responsibilities, i.e. he is their lawyer, while on the other hand, he is the prosecutor when one of them is suspected of criminal actions. In the above-mentioned study, the researchers recommended that if the division of the AG's responsibilities is considered the best solution for the problem, then the separation should be implemented in a deliberate and calculated fashion, and not hastily. It is entirely unclear whether the Minister of Justice's proposal meets these recommendations.
Moreover, although the problem is real, the solution to it must indeed aim at solving the problem and strengthening the justice system, and not at exploiting the problem through a solution that promotes other causes, perhaps conflicting ones. The suspicion arises that the Minister does not see an opportunity for structural reform, but rather a way in which he can weaken the legal system, charged with enforcing the law. There are two reasons for this claim:
- First, beyond the main recommendation of the bill – separating the authorities and creating a new position of Public Prosecutor – Friedman's bill substantially weakens the AG: his legal opinion will no longer be binding, and will be reduced to the status of a recommendation. Essentially, this means that the government will be able to ignore the AG's opinion with immunity. The AG's position in restraining politicians is vital for Israeli politics, as has been proven over the years. Turning the AG into a puppet who sits in on government meetings, thereby providing an illusion of legitimacy, actually means the removal of yet another restriction which currently prevents the government from acting according to its relentless security-oriented approach. The importance of legal counsel for restraining gut reactions on the part of the government cannot be overestimated, and the measures used by the government must be examined carefully – their purpose as well as their worthiness.
- The main reason for accusing the Minister of exploiting the need for reform for weakening the legal system, is that the bill does not include what it should: an amendment to the way the Public Prosecutor is appointed. The Public Prosecutor must be entirely independent and cannot be influenced in his decisions by any political considerations. Therefore, it would be expected that he be chosen by a non-political body, similar to the Judges Election Committee. This is the only way to ensure that the position of Public Prosecutor is not staffed by someone perceived by the government as an efficient "case closer" for elected officials.
The central problem caused by Friedman's recommendations is a problem which usually receives less attention – the problem of visibility. This is an essential problem with the way Friedman has been functioning as Justice Minister, and separates Friedman the academic from Friedman the politician.
As an academic, Friedman was permitted to criticize the judicial system and to raise his ideas and suggestions for public and academic discussion. As Minister of Justice, Friedman is not merely criticizing but applying political pressure in order to change the rules. There is a great difference between an academic who chooses to criticize the judicial system and a Minister of Justice, entrusted with the protection of that same system, who criticizes it. Moreover, the Minister's remarks about the court and about the AG's office, express not criticism but hostility and contempt, when he accuses the judicial system of foreign considerations, without a real basis for these accusations. Friedman portrays the judicial system as sick, rotten and corrupt. The type of war he is waging against it, in addition to the circumstances of his appointment and the nature of the government of which he is part (a government under investigation), thwart the possibility of concise criticism of the system. Only because the Minister of Justice has declared war on the judicial system is it necessary to pick a side in this war.
Friedman, in his attempts to introduce changes to the judicial system, is perceived as someone who wishes to weaken it entirely. He is seen as someone who introduces bill after bill against the Supreme Court. Time and again he broadens his "crusade" (as former Chief Justice Aharon Barak calls it) and attacks the Attorney General and the Prosecutor General as well. In this way, for example, he acted to amend the way in which these two are appointed, so that the professional aspect of their selection is weakened and the government's role in the process is strengthened. These actions are a continuous challenge to the legitimacy of judges and prosecutors, from the method of their selection to the essence of their position and the character of their duties.
Prof. Friedman is well aware that his actions and remarks will inevitably weaken the courts, the Attorney General's office and the Prosecutor General's office, and erode their public legitimacy. Is this knowledge not evidence enough that this is actually his aspiration? Moreover, despite his academic background, Friedman as Minister of Justice represents the political system, and his express agenda is to realign the relationship between politics and justice by weakening the judicial system. If so, are merely ad hoc responses to his recommendations adequate? Are these recommendations not to be seen as part of a larger attempt to destroy the judicial system?
One could dispute each of Friedman's bills separately, but one should definitely not give in to hasty procedures that were not preceded by serious study, and one cannot agree to the weakening of the judicial system. A loss of the public's faith in the judicial system is perhaps the most dangerous process in our public life. The immediate effect of a weak judicial system is an erosion of the rule of law. On the other hand, a strong and stable judicial system which is independent and self-sufficient is a pre-condition of democracy.